APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
527 N.E.2d 654, 172 Ill. App. 3d 980, 123 Ill. Dec. 191 1988.IL.1215
Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
After a jury trial, defendant, Robert Purifoy, was found guilty of murder and was sentenced to a term of 30 years' imprisonment in the Department of Corrections. On direct appeal, where the only issue raised was whether defendant's sentence was excessive, this court affirmed the judgment in a Rule 23 order (People v. Purifoy (1985), 135 Ill. App. 3d 1164 (unpublished Rule 23 order)). The present appeal is from the denial of defendant's petition for post-conviction relief.
Defendant now argues that he was denied effective assistance of counsel because his trial attorney did not move to suppress defendant's statements. He also contends that he was denied effective assistance of counsel on direct appeal because appellate counsel did not raise as error the ineffective assistance of trial counsel or the trial court's refusal to give certain instructions tendered by defendant. For the reasons set forth below, we affirm.
Defendant was charged in a two-count indictment filed on May 2, 1984, with the murder of Oscar Perez. The first count alleged that defendant, with the intent to kill or do great bodily harm to Perez, shot and killed him. The second count alleged that defendant killed Perez while attempting or committing the forcible felony of burglary.
The shooting with which defendant was charged occurred at the home of Sergio Guzman, 1317 Harold Avenue, in Loves Park, Illinois, on the evening of April 14, 1984, a Saturday. The victim of the shooting, Oscar Perez, was Guzman's brother. Perez did not live at the house but was there on the evening of April 14 with his girlfriend, Yolaida Morell. The State's evidence demonstrated that the victim had died from a single gunshot wound which penetrated his heart muscle and which entered through the front door of the house. Another shot also went through the front door of the house, and that projectile was found lodged in the wood trim of the south wall of the house, several feet from the base of the floor.
Upon their arrival at the scene, the police recovered a .38 caliber gun from near the victim's left side and a spent cartridge from next to his right leg. The spent cartridge had been discharged from a .38 caliber weapon, while the projectiles removed from Perez' body and from the wood trim of the house were .22 caliber. With regard to the two bullet holes discovered in the front door of the house, the police determined that one bullet had passed through the solid part of the door, while the other had passed through the door curtain, blackening the area of the curtain around the hole. In the opinion of firearms and tool mark examiner Peter Striupaitis, both of these gunshots were probably close to contact shots with respect to the door.
Sergio Guzman, the owner of the house on Harold Avenue, testified that he had two stereos inside his home as of April 14. One, an old one, was kept by the front door and was blocking it, because he never used his front entrance. Rather, he used only the side entrance and kept the front door locked. He also had a newer stereo in his home which his brother Oscar had bought. In addition, he kept some coins in his home in a cement container.
On occasions prior to the shooting of his brother, Guzman had experienced problems with people trying to break into his home. On one occasion, he observed someone face-to-face who was tampering with his door, whom he described to the police as a teenager, approximately 5 feet 3 inches in height and stocky. On the Friday evening before his brother was shot, someone had tried to open a back window at the house. The next evening, Guzman left to play pool, leaving his brother and his brother's girlfriend behind in the house. Before leaving, he discussed the attempted break-in of the prior evening with his brother and told him that if someone tried to break in that night, he should use the gun in the house to defend himself. Although he testified that three Purifoys had played cards at his house about one week prior to the shootings, the witness stated he did not know the defendant and had never seen him before.
Yolaida Morell, Oscar Perez' girlfriend, testified that after Guzman left the house, she and Perez watched television until about 9 p.m. They then turned off the set and went into the bedroom where they sat and talked; no lights were on in the house at the time.
Not long after going into the bedroom, they heard a knock at the side door. Perez, looking out the window, told Morell he saw a car belonging to one of his relatives, but he instructed her to not answer the door because he wanted whomever was trying to break in to think no one was home. Shortly thereafter, they heard another knock on the side door, and Perez looked out but did not see any cars. Whoever was at the door then began knocking very hard, and Perez told the witness that it must be the person who had been trying to break into the house before. At Morell's urging, Perez picked up the gun which his brother kept on a table in the bedroom.
Shortly thereafter, Morell heard a sound at the front door like someone cutting glass and also heard sounds as though someone were going through papers, although she did not see anyone in the house. Someone shone a light in the living room, and she heard a voice say, "Come out, we want your money." Perez moved out of the bedroom and toward the kitchen and then squatted down next to the television set with the gun in both hands, pointing it in the direction of the front room. Right after that, the witness heard two shots. She stayed in the bedroom for a few more minutes and then went out and discovered Perez lying in the doorway between the kitchen and the front room. Morell could not identify anyone as being at the house that evening.
Terry Purifoy, a cousin of the defendant, testified at trial as a witness for the State. On the evening of April 14, 1984, he and his girlfriend, Sue Mackey, drove over to the home of Robert Purifoy's parents, where they sat in Terry's car to await the return of Terry's mother from a nearby church. While they were sitting in the car, Robert came up and asked Terry if he would go with him to check out a stereo and television. Terry agreed ...